Associated Provincial Picture Houses Ltd v Wednesbury Corporation

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Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] APP.L.R. 11/10

Arbitration, Practice & Procedure Law Reports. Typeset by NADR. Crown Copyright reserved. 1947] EWCA Civ 1 1

CA before Lord Greene, MR.; Somervell LJ; Justice Singleton. 10th November 1947

MASTER OF THE ROLLS:1. In the action out of which this appeal arises, the plaintiffs, who are the proprietors of a cinema theatre in

Wednesbury, sought to obtain from the court a declaration that a certain condition imposed by the defendants,the corporation of Wednesbury, on the grant of a licence for Sunday performances in that cinema was ultra vires.The action was dismissed by Mr Justice Henn Collins and, in my opinion, his decision was clearly right. The powersand duties of the Local Authority are to be found in the Sunday Entertainments Act, 1932. That Act legalized theopening of cinemas on Sundays, subject to certain specified conditions and subject to such conditions as the

licensing authority think fit to impose. The licensing authority are the licensing authority set up under theCinematograph Act, 1909, and in this case are the council of the borough of Wednesbury. Before the Act of1932, the opening of cinematograph theatres on Sundays was, in fact, illegal. Local authorities had purported insome cases to allow Sunday opening under the licences which they granted, but that permission was strictlyirregular. The position under the Act now with regard to licensing is stated conveniently by Mr Justice Atkinson in

Harman v. Butt [1944] Kings Bench at page 493. He there says: "It is apparent that there are at least three totallydifferent occasions on which licensing justices may be called on to exercise their discretion to issue a licence and todetermine on what conditions the licence shall be issued. The application may be under the Cinematograph Act, 1909,relating to six days of the week, excluding Sundays. It may be one relating solely to Sundays under the SundayEntertainments Act, 1932, where in the case of a borough the majority of the local government electors haveexpressed a desire for Sunday performances. Thirdly, it may be one where the local government electors haveexpressed no such wish, but where the application is made for the benefit of those members of the forces who arestationed in the neighbourhood for the time being."

2. Under a regulation, the commanding officer of forces stationed in the neighbourhood had power to make arepresentation to the licensing authority and the case of Harman v. Butt [1944] Kings Bench 491, was, in fact, acase where that had taken place.

3. The actual words in question here are to be found in s.1, sub-s.1, of the Sunday Entertainments Act of 1932:SUNDAY ENTERTAINMENTS ACT 1932 CHAPTER 51.

An Act to permit and regulate the opening and use of places on Sundays for certain entertainments and for debates,and for purposes connected with the matters aforesaid. [13th July 1932.]

BE it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual andTemporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1.(1) The authority having power, in any area to which this section extends, to grant licences under theCinematograph Act, 1909, may, notwithstanding anything in any enactment relating to Sunday observance,allow places in that area licensed under the said Act to be opened and used on Sundays for the purpose ofcinematograph, entertainments, subject to such conditions as the authority think fit to impose :

Provided that no place shall be allowed to be so opened and used unless among the conditions subject to whichit is allowed to be so opened and used there are included conditions for securing

(a)that no person will be employed by any employer on any Sunday in connection with a cinematographentertainment or any other entertainment or exhibition given therewith who has been employed on each ofthe six previous days either by that employer in any occupation or by any other employer in connectionwith similar entertainments or exhibitions; and

(b)that such sums as may be specified by the authority not exceeding the amount estimated by the authority asthe amount of the profits which will be received from cinematograph entertainments given while the placeis open on Sundays, and from any other entertainment or exhibition given therewith, and calculated byreference to such estimated profits or to such proportion of them as the authority think fit, will be paid asto the prescribed percentage thereof, if any, to the authority for the purpose of being transmitted to theCinematograph Fund constituted in accordance with the provisions of this Act, and as to the remainderthereof to such persons as may be specified by the authority for the purpose of being applied to charitableobjects;

and for the purpose of any conditions imposed by an authority as to the payment of sums calculated byreference to such estimated profits as aforesaid, the profits shall be computed in such manner as the authority

may direct.The power to impose conditions is expressed in quite general terms. The sub-section goes on to refer to certainconditions which must be imposed, but with those we are not concerned. In the present case, the defendantsimposed the following condition in their licence: "No children under the age of fifteen years shall be admitted to anyentertainment, whether accompanied by an adult or not."

4. Mr. Gallop, for the plaintiffs, argued that it was not competent for the Wednesbury Corporation to impose anysuch condition and he said that if they were entitled to impose a condition prohibiting the admission of children,they should at least have limited it to cases where the children were not accompanied by their parents or aguardian or some adult. His argument was that the imposition of that condition was unreasonable and that inconsequence it was ultra vires the corporation. The plaintiffs' contention is based, in my opinion, on amisconception as to the effect of this Act in granting this discretionary power to local authorities. The courts mustalways, I think, remember this: first, we are dealing with not a judicial act, but an executive act; secondly, the


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conditions which, under the exercise of that executive act, may be imposed are in terms, so far as language goes,put within the discretion of the local authority without limitation. Thirdly, the statute provides no appeal from thedecision of the local authority.

5. What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shownthat the authority has contravened the law. It is for those who assert that the local authority has contravened thelaw to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful.It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed theirpowers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute

itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When anexecutive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears tobe an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I havesaid, it must always be remembered that the court is not a court of appeal. When discretion of this kind isgranted the law recognizes certain principles upon which that discretion must be exercised, but within the fourcorners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any courtof law. What then are those principles? They are well understood. They are principles which the court looks to inconsidering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of thediscretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters whichthe authority exercising the discretion ought to have regard to, then in exercising the discretion it must haveregard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Actmake it clear that certain matters would not be germane to the matter in question, the authority must disregardthose irrelevant collateral matters. There have been in the cases expressions used relating to the sort of things thatauthorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under othercases where the powers of local authorities came to be considered. I am not sure myself whether the permissible

grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find aseries of grounds set out. Bad faith, dishonesty - those of course, stand by themselves - unreasonableness,attention given to extraneous circumstances, disregard of public policy and things like that have all been referredto, according to the facts of individual cases, as being matters which are relevant to the question. If they cannotall be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we haveheard in this case a great deal about the meaning of the word "unreasonable."

6. It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with thephraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable"in arather comprehensive sense. It has frequently been used and is frequently used as a general description of thethings that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himselfproperly in law. He must call his own attention to the matters which he is bound to consider. He must exclude fromhis consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he maytruly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that nosensible person could ever dream that it lay within the powers of the authority. Lord Justice Warrington in Short v.

Poole Corporation [1926] Chancery 66 at pages 90 and 91, gave the example of the red-haired teacher,dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking intoconsideration extraneous matters. It is so unreasonable that it might almost be described as being done in badfaith; and, in fact, all these things run into one another.

7. In the present case, it is said by Mr. Gallop that the authority acted unreasonably in imposing this condition. Itappears to me quite clear that the matter dealt with by this condition was a matter which a reasonable authoritywould be justified in considering when they were making up their mind what condition should be attached to thegrant of this licence. Nobody, at this time of day, could say that the well-being and the physical and moral healthof children is not a matter which a local authority, in exercising their powers, can properly have in mind whenthose questions are germane to what they have to consider. Here Mr. Gallop did not, I think, suggest that thecouncil were directing their mind to a purely extraneous and irrelevant matter, but he based his argument on theword "unreasonable," which he treated as an independent ground for attacking the decision of the authority; butonce it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by thiscondition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case.Once that is granted, Mr. Gallop is bound to say that the decision of the authority is wrong because it is

unreasonable, and in saying that he is really saying that the ultimate arbiter of what is and is not reasonable isthe court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear thatthe local authority are entrusted by Parliament with the decision on a matter which the knowledge and experienceof that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevantfor its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision ona competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courtscan interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming,and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreedthat his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, reallymeant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that noreasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.If it is what the court considers unreasonable, the court may very well have different views to that of a localauthority on matters of high public policy of this kind. Some courts might think that no children ought to be


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admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on athing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up thecourt as an arbiter of the correctness of one view over another. It is the local authority that are set in that positionand, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion,cannot interfere.

8. This case, in my opinion, does not really require reference to authority when once the simple and well knownprinciples are understood on which alone a court can interfere with something prima facie within the powers of theexecutive authority, but reference has been made to a number of cases. I can deal, I think, quite shortly with them.

First, Mr Justice Henn Collins followed a decision of Mr Justice Atkinson in the case I have mentioned of Harman v.Butt [1944] Kings Bench 491. In that case a condition of this character had been imposed and I think the onlydifference between the two cases is that in Harman v. Butt [1944] Kings Bench 491. the licence to open onSundays originated in a representation by the commanding officer of forces stationed in the neighbourhood. MrJustice Atkinson dealt with the matter thus [1944] Kings Bench 491 at page 499: "I am satisfied that the defendantswere entitled to consider matters relating to the welfare, including the spiritual well-being, of the community and ofany section of it, and I hold that this condition that no child under the age of sixteen should be admitted to thiscinematograph theatre on Sunday is not ultra vires on the ground that it is not confined to the user of the premises bythe licensee, but relates to the interest of a section of the community."

9. Then he goes on to deal with the question of reasonableness. That was a case in which the decision, in my opinion,is unassailable. There are two other cases relied upon. One is R. v Burnley Justices85 Law Journal Reports, King'sBench 1565, and another not dissimilar case on one point, Ellis v. Dubowski[1921] 3 Kings Bench 621. Those werecases where the illegal element which the authority had imported into the conditions imposed consisted of adelegation of their powers to some outside body. It was not that the delegation was a thing which no reasonableperson could have thought was a sensible thing to do. It was outside their powers altogether to pass on thisdiscretion which the legislature had confided to them to some outside body. Another case on which Mr. Galloprelied is Roberts v. Hopwood[1925] AC 578. That was a totally different class of case. The district auditor hadsurcharged the members of a council who had made payments of a minimum wage of 4l. a week to their lowestgrade of workers. That particular sum had been fixed by the local authority not by reference to any of thefactors which go to determine a scale of wages, but by reference to some other principle altogether, and thesubstance of the decision was that they had not fixed 4l. a week as wages at all and that they had actedunreasonably. When the case is examined, the word "unreasonable"is found to be used rather in the sense that Imentioned a short while ago, namely, that in fixing 4l. they had fixed it by reference to a matter which theyought not to have taken into account and to the exclusion of those elements which they ought to have taken intoconsideration in fixing a sum which could fairly be called a wage. That is no authority whatsoever to support theproposition that the court has power, a sort of overriding power, to decide what is reasonable and what isunreasonable. The court has nothing of the kind.

10. I do not think I need take up time by referring to other authorities, but I might say this in conclusion. An early caseunder the Cinematograph Act, 1909, much discussed before us, was Theatre de Luxe (Halifax) Ltd v. Gledhill

[1915] 2 Kings Bench 49. That was a decision of a Divisional Court as to the legality or a condition imposedunder the Act to the following effect: "Children under fourteen years of age shall not be allowed to enter into or bein the licensed premises after the hour of 9 p.m. unaccompanied by a parent or guardian. No child under the age often years shall be allowed in the licensed premises under any circumstances after 9 p.m."

11. That case was heard by a Divisional Court of the King's Bench Division, consisting of Lush, Rowlatt and Mr JusticeAtkin. The majority, consisting of Justice Lush and Mr Justice Rowlatt held that the condition was ultra vires as therewas no connexion, as the headnote says, "between the ground upon which the condition was imposed, namely,regard for the health and welfare of young children generally, and the subject-matter of the licence, namely, the useof the premises for the giving of cinematograph exhibitions." That case is one which, I think, I am right in saying hasnever been referred to with approval, but often referred to with disapproval, though it has never been expresslyoverruled. I myself take the view that the decision of the majority in that case puts much too narrow a constructionupon the licensing power given by that Act, which, of course, is not the same Act as we have to consider here. MrJustice Atkin on the other hand, delivered a dissenting judgment in which he expressed the opinion that the powerto impose conditions was nothing like so restricted as the majority had thought. Quoting again from the headnote,his opinion was "that the conditions must be (1.) reasonable; (2.) in respect of the use of the licensed premises; (3.) inthe public interest. Subject to that restriction there is no fetter upon the power of the licensing authority." If I mayventure to express my own opinion about that, I think that Mr Justice Atkin was right in considering that therestrictions on the power of imposing conditions were nothing like so broad as the majority thought, but I am notsure that his language may not perhaps be read in rather a different sense from that which I think he must haveintended. I do not find in the language that he used any justification for thinking that it is for the court to decideon the question of reasonable-ness rather than the local authority. I do not read him as in any way dissenting fromthe view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable,but to decide whether what is prima facie within the power of the local authority is a condition which noreasonable authority, acting within the four corners of their jurisdiction, could have decided to impose. Similarly,when he refers to the public interest, I do not read him as saying more than that the public interest is a properand legitimate thing which the council or the licensing authority can and ought to have in mind. He certainly doesnot suggest anywhere that the court is entitled to set up its view of the public interest against the view of the local


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authority. Once the local authority have properly taken into consideration a matter of public interest such as, inthe present case, the moral and physical health of children, there is, it seems to me, nothing in what Mr JusticeAtkin says to suggest that the court could interfere with a decision because it took a different view as to what wasin the public interest. It is obviously a subject on which different minds may have different views. I do not read himas saying any more than that the local authority can and should take that matter into account in coming to theirdecision.

12. In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarize once again theprinciple applicable. The court is entitled to investigate the action of the local authority with a view to seeing

whether they have taken into account matters which they ought not to take into account, or, conversely, haverefused to take into account or neglected to take into account matters which they ought to take into account. Oncethat question is answered in favour of the local authority, it may be still possible to say that, although the localauthority have kept within the four corners of the matters which they ought to consider, they have neverthelesscome to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case,again, I think the court can interfere. The power of the court to interfere in each case is not as an appellateauthority to override a decision of the local authority, but as a judicial authority which is concerned, andconcerned only, to see whether the local authority have contravened the law by acting in excess of the powerswhich Parliament has confided in them. The appeal must be dismissed with costs.

LORD JUSTICE SOMERVELL: I agree that the appeal must be dismissed for the reasons which have been given by theMaster of the Rolls, and I do not desire to add anything.

JUSTICE SINGLETON: I agree.

Order: Appeal dismissed with costs.

MR GALLOP K.C. and MR S. LAMB (instructed by Messrs. Norman, Hart & Mitchell) appeared on behalf of the Plaintiffs (Appellants).MR FITZGERALD K.C. and MR V. GATTIE (instructed by Messrs. Pritchard & Co.) appeared on behalf of the Defendants (Respondents).

Associated Provincial Picture Houses Ltd v Wednesbury Corporation

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